State ethics oversight kept out of public view

HARRISBURG - Gene Stilp wasn't looking for a pat on the back, but he didn't expect to be slapped with a fine, either.

The state Ethics Commission fined Stilp $500 last year after he publicly disclosed that he had filed a complaint requesting an investigation of lawmakers' alleged use of nearly $300,000 in taxpayer money to conduct political polls.

Ethics commission rules prohibit public discussion of complaints, even by the private citizens who file them. In addition to the fine, the commission sought to impose a gag order on Stilp.

A federal judge issued an injunction blocking enforcement of the order. The state appealed the ruling to a federal appeals court.

Now Stilp, chairman of Taxpayer and Ratepayers United, is in a free speech fight.

"This (gag order) is a total violation of my First Amendment rights," he said. "You can't prevent a person from talking about something."

The Ethics Commission's attempt to silence Stilp demonstrates a philosophy shared by the three bodies charged with ensuring transparency in the state Legislature. The Ethics Commission and the Senate and House ethics committees operate behind a veil of secrecy and complicated rules, which critics say limits public access and shields lawmakers from taxpayer accountability.

Despite criminal charges and three convictions resulting from the state attorney general's Bonusgate investigation into illegal campaign activities, there is no record of the Senate or House ethics committees sanctioning any lawmaker on those grounds. All legislative committees conduct their business in public, except these two.

The seven-member Ethics Commission, created three decades ago during a post-Watergate reform wave, includes three gubernatorial appointees and four appointees made by legislative leaders. Like the legislative committees, the commission operates under rules of secrecy about ethical issues involving both state and local government officials until a decision is issued.

As a reform gesture, the Senate wants to give its ethics committee power to investigate and potentially levy sanctions against senators who run afoul of proposed rules to explicitly ban political activity on legislative work time.

A Republican senator is drafting a proposal in consultation with Senate leaders to ease the confidentiality rule. Currently, the Senate ethics committee chair won't even comment on whether a complaint has been received. Sen. John Gordner, R-27, Berwick, said a committee chair should be able to explain how the panel voted concerning the preliminary investigation of a complaint.

Gordner's involvement with this issue results from the handling last year of two ethics complaints against Senate Minority Leader Robert Mellow, D-22, Peckville.

Mellow's paid membership on the board of Blue Cross of Northeastern Pennsylvania and his role in directing more than $200,000 in taxpayer-funded rent payments for his district office at 524 Main St., Peckville, to a company co-owned by his then-wife and later himself, were the subject of the complaints, filed separately by Eric Epstein, coordinator of RocktheCapitol.org, and Stilp.

The Senate Ethics Committee, which Gordner chaired, dismissed the two complaints against Mellow on technical grounds on the same day last December even through the complaints were filed nine months apart. The public became aware of the dismissals when Epstein and Stilp released the nearly identical notification letters. The two activists have since re-filed their complaints with the committee.

"The committee never considered the substance of either complaint," said Epstein. "It was as if they were looking for a technicality or reason not to deal with it."

Gordner said he had to remain silent when the activists released the letters and raised questions about the dismissal.

"As a chair, I would have liked to have explained the reasons for the decision," he said. "The (proposal) would allow for better confidence in the process."

While he agrees that a less-secretive approach could bolster public trust in government, Gordner said it would be a mistake to open committee meetings to the public. He said senators are concerned ethics complaints can be misused for partisan purposes. The committee is split 3-3 between Republicans and Democrats and it takes four votes to proceed with an investigation.

Gordner resigned from the committee last year when he took over as chairman of the Senate Republican Campaign Committee for 2010. Gordner said continuing on the ethics committee would have been a conflict of interest.

Federal agents searched Musto's home on April 8. Federal officials have refused to discuss the reason for the search, but Musto theorized it was part of an ongoing corruption probe. The 81-year-old Democrat, who will retire at year's end after 27 years in the Senate, has denied any wrongdoing and has not been charged.

The House Ethics Committee meets regularly to oversee mandatory ethics training for members and staffers, but it has been some time since the panel took action against a lawmaker. In 2004, the committee cleared former Rep. William Rieger, a Philadelphia Democrat, of allegations of ghost-voting when he was not in the House chamber.

Ethics committee members are appointed by House leaders. A proposal was made in 2007 to make the committee more autonomous by having four members chosen by random out of a pool, but it was rejected in a House floor vote.

"You need to create an independent entity that has the charge to aggressively investigate conflict of interest issues in a timely fashion," said Epstein.

The ethics commission has taken action against two House lawmakers for using legislative employees to do campaign work in recent years. Former Rep. Matthew Wright, a Bucks County Republican, paid $10,000 last January under a consent order to settle allegations in his case. The commission ordered former Rep. Jeffrey Habay, a Pittsburgh Republican, to pay $12,000 in restitution in 2004 for using employees to do campaign work. Habay was then convicted on state charges related to his misuse of employees.

Meanwhile, the 3rd U.S. Circuit Court of Appeals in Philadelphia will hold a hearing May 11 on Stilp's challenge of the commission's gag rule.

A win in this case will enable news organizations learn about state ethics investigations too, said Stilp.

Commission officials won't comment about the Stilp case, but they maintain that a confidential ethics investigation is needed to ensure cases are decided through fact-finding, not rumors or inferences damaging to someone's reputation.

"So you don't have trial by innuendo, the process is confidential" said John Contino, the ethics commission executive director.

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